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Mammogram Injury Lawsuit Award: $77,500

December 14, 2012
Written by: , Filed in: Breast Imaging, Medical Ethics
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A woman who said a painful mammogram accelerated the growth of her breast cancer has won a lawsuit against the clinic and technician who conducted the procedure. But the court awarded much less in damages than she’d hoped for: $77,500 (Canadian).

The woman, Joy Ann McKerr of Victoria, British Columbia, is now seriously ill. She sued last year, as we reported in November 2011. She said a routine mammogram on October 3, 2008, caused severe pain in her left breast and bruising that lasted several months.

The Times Colonist newspaper of Victoria reported on the trial and verdict. According to the newspaper, a radiologist noted a “low-suspicion finding” from the mammogram. Both the radiologist and McKerr’s primary-care physician recommended a follow-up mammogram. But McKerr decided she couldn’t tolerate another procedure and missed her December 1, 2008, appointment for a diagnostic mammogram.

But the pain continued. In February 2009, McKerr was diagnosed with inflammatory breast cancer. The cancer has metastasized. In her lawsuit, she claimed that the mammogram injury made the cancer grow more quickly. She sought a significant damage award for pain and suffering, a shortened lifespan, and loss of income.

During the trial, dueling experts—one testifying for the plaintiff, one for the defense—agreed that the cancer was present during the October 2008 mammogram. But they disagreed about whether trauma, such as that suffered by McKerr during the procedure, could speed the progression of cancer.

British Columbia Supreme Court Justice Jennifer Power decided there was insufficient scientific evidence to conclude that the mammogram affected the growth of the cancer. She did fault CML HealthCare Inc., operator of the clinic, and mammography technician Leslie Connie for continuing the procedure after McKerr asked Connie to end it because of severe pain and discomfort.

In her decision, Power wrote:

In the circumstances, Ms. Connie had a duty to stop the procedure and to explore other options to obtain the image.

Power based the damage award on pain and suffering from the mammogram and the bruising and other injuries that resulted, and from the delay in the cancer diagnosis that occurred because of McKerr’s reluctance to subject herself to more mammography-related distress.

“The pain in the immediate aftermath of the mammogram was significant,” Power wrote. “The ongoing emotional suffering related to the mammogram is significant.”

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